Specific purpose of necessity in an alienation relied on.

By Exhibit D-2, dated 4th September, 1934, the properties in dispute were sold to D.W.2 by one Muthukaruppa Pillai, who was the manager of a joint family consisting of himself and the present defendants 3 and 4. D.W. 2 sold the properties in her turn to the first defendant under Exhibit D-1, dated 25th February, 1942. The plaintiff is a purchaser of 1/3rd share of the suit properties from the third defendant, after he attained majority and on foot of that title brought the suit for partition and recovery of the 1/3rd share which he purchased. The trial Court found that the sale under Exhibit D-2 by the manager of the joint Hindu family was valid and binding on the family and therefore the first defendant had acquired absolute title so far as the properties were concerned and the sale by the third defendant in favour of the plaintiff did not therefore convey any title or right to the properties. The trial Court also found that the sale deed in favour of the plaintiff was not a genuine transaction. On these grounds the suit was dismissed.

The plaintiff took up the matter in appeal and the learned District Judge of Tiruchirapalli was of opinion that the finding of the District Munsif that the sale in favour of the plaintiff was not genuine could not be justified. Therefore the learned District Judge gave a declaration setting aside the finding of the learned District Munsif that the sale to the plaintiff was not genuine and he held that the plaintiff was entitled to bring the suit. The other point raised by the first defendant before the lower appellate Court that the plaintiff was not entitled to bring a suit without setting aside the sale in favour of D.W.2 was also found against the first defendant by the lower appellate Court. The correctness of these two findings cannot be disputed in second appeal because so far as the question regarding the genuineness of the sale in favour of the plaintiff is concerned it is abundantly clear from the evidence that the sale deed is genuine and the learned Judge’s finding on that point being on a question of fact cannot be upset in second appeal. On the other question as regards the right of the plaintiff to bring a suit without setting aside the sale in favour of D.W.2 the lower appellate Court relied upon the decision in Kamaraju v. Gunnayya1 and rejected the view of the Calcutta High Court in Monmohan Bhattacharjee v. Bidhu Bhusan Dutta2. I see no reason to disagree with the conclusion of the learned Judge in his preference of the Madras Bench decision to that of the Calcutta Court. Therefore his decision on that point also is correct.

The real question in the second appeal is whether the learned District Judge has approached the question from the proper legal standpoint when he formulated the burden of proof in the case. The first defendant in his written statement did not state that D.W. 2 from whom he derived his title was a bona fide purchaser who made proper enquiries regarding the necessity for the transaction and was satisfied about the existence of such necessity. On the other hand the case put forward is that D.W. 2 knew the state of the family sufficiently well and was aware of the fact that the marriage of Muthukaruppa’s sister had to be performed and for that purpose money was borrowed and the same was expended. In chief-examination D.W. 2 stated that Muthukaruppa sold the land to meet the marriage expenses of his sister, the sale price being a sum of Rs. 200. But in cross-examination she says she was unable to know how much money was spent for the marriage. The learned District Judge was of opinion that the evidence in the case was not enough to show that money was required for the purpose of the marriage for the reason that in the sale deed Exhibit D-2 there was no recital whatever that money was required for such marriage. In the absence of any recital in the sale deed with respect to the necessity for the money, the learned Judge was inclined to infer that the exist